^ .N* A WORLD COURT IN THE LIGHT OF THE UNITED STATES SUPREME COURT WORKS BY THE AUTHOR. Some facts about Alsace and Lorraine, 1895. The Brooke Family of Whitchurch, Hampshire, England, together with an account of Acting-Governor Robert Brooke of Mar>'land and Colonel Ninian Beall of Maryland, 1899. The Alabama Arbitration, 1900. fimeric Cruc(5, 1900. The Alasko-Canadian Frontier, 1902. The Alaska Frontier, 1903. The English Ancestors of the Shippens and Edward Shippen of Philadelphia, 1904. The Swift Family of Philadelphia, 1906. Balch Genealogica, 1907. L'fivolution de I'Arbitragc International, 1908. La Baie d'Hudson, est elle une mer libre ou une mer ferm^ 1911 ? La Baie d'Hudson est une grande mer ouverte, 19 13. Diffcrends juridiques et politiques dans les rapports des Nations, 1914. "Arbitration" as a term of International Law, 1915. The Influence of the United States on the Development of the Law between Nations, 19 15. Legal and Political International Questions and the Recurrence of War, 1916. The Philadelphia Assemblies, 19 16. A WORLD COURT IN THE LIGHT OF THE UNITED STATES SUPREME COURT THOMAS WILLING BALCH L. H. D., Trinity College Member of the Philadelphia Bar A Vice-President of the Historical Society of Pennsylvania Philadelphia ALLEN, LANE AND SCOTT 1918 • o"^ Copyright. 1918, by /I. 1 J' C'f/.jL-* ' THOMAS WILLING BALCH ^p TO MY MOTHER 372971 INTRODUCTION. HUMANITY has long sought to ward off the ravages and burdens that resiolt from war. The lake dwellers of Switzerland tried to protect themselves against the attack of strangers by build- ing their dwellings above the water on piles far from the shore. The Romans, at the height of their prosperity, built a line of fortifications, Limes Imperii Romani, from the Rhine to the Danube. Those fortifications, inside of which were the medici- nal springs of the Taunus region, served against the barbarians of the north as the connecting link between those two rivers that were the northern boulevards on the continent of Europe of the Roman Empire. The Chinese Empire built a long wall ex- tending from the sea inland, for hundreds and hun- dreds of miles, to keep out the barbarians of the north of Asia. The feudal barons of Europe, as for instance the lords of Coucy-le-Chateau or Pierre- fonds in northern France, built great castles, whose strong walls and high towers afforded them and their retainers and peasants protection against unexpected attack, and also allowed them to levy- tribute upon the surrounding lands and any mer- 2 A WORLD COURT IN THE LIGHT OF chants that ventured within their territory. The burghers of the Middle Ages surrounded their cities with great walls and moats, such as those around the cities of Numberg in Germany and Aiguesmortes in southern France, to protect their lives and prop- erty against attack and to hold guard upon the surrounding fields from where they drew their food. More recently, Nations have built forts about their frontier towns to check the advance of a hostile army; and in one notable case at least, the northeastern front of France, the whole of one frontier was literally fortified with a chain of forts to aid in repelling invasion. Nations have built great fleets of war vessels. Thus Venice, the United Netherlands, and England have built and main- tained great fleets for the double purpose of wardmg attack from and of safeguarding the commerce of their respective countries, and in the case of Great Britain of assuring in addition the food supply of the Nation. And now the Nations have constructed great fleets of serial war crafts as an adjunct to their military establishments on land and sea for purposes of attack and defense. In each of these cases the main object was the same; to afford both a safeguard against attack and invasion of the home, whether that home was a THE UNITED STATES SUPREME COURT. i small wooden house built above a lake, a strong stone castle, a prosperous city, or the land of a great Nation; and also often at the same time a safe vantage point from which, combined with the requisite mobility, the inhabitants could sally forth to attack strangers to seize upon their wealth. Within the last half century, however, humanity has turned its attention seriously to developing an additional way of warding off war. Ever since the judicial settlement of the Alabama Claims by the Geneva Tribunal in 1872, both governments and peoples have sought more and more to perfect the international judicial machinery by which, for the settlement of differences arising between Nations, they woiild call to their aid jural customs and rules interpreted by International Courts of Justice set up ad hoc. As a residt of the call in 1898 of the Emperor Nicholas the Second, for the meeting of the First Hague Peace Conference in 1899, new impetus was given to the efforts to avoid war between the Nations by a resort to legal means. In the first place, provision was made in the legis- lation enacted by that Conference, in which twenty- six of the Nations of the world took part, to facilitate the use of good offices and mediation as means to smooth over the difficulties that arise between 4 A WORLD COURT IN THE LIGHT OP Nations and which they fail to settle by ordinary diplomatic intercourse. In addition, however, the Conference of 1899 made provisions to facilitate the establishment ad hoc of International Courts of Justice, such as the Geneva Tribunal of 1871-72 that judged the Alabama Claims, and the Paris Tribunal of 1893 that decided the Bering Sea Fur Seal fisheries, to judge causes of difference arising between the Nations instead of allowing the dis- puting powers gradually to drift, sooner or later, into war. The Conference of 1899 provided for a panel of eminent men, jurists learned in the Law between Nations, from whom two disagreeing Nations could readily constitute an International Tribunal to tr>' the cause of difference between the disputing powers, so soon as the latter had decided to refer their dispute for solution to an International Court of Justice for a judicial decision.' The Second Hague Peace Conference of 1907, at which forty-four of the Nations were represented, perfected the machin- ery for the calling into being of International Judicial Tribunals, appointed ad hoc, and the American delegation proposed the establishment of a Supreme ' A. Pcarcc Higgins: Thf Hague Peace Conferences, Cambridge University Press, 1909, page ub cl stq. THE UNITED STATES SUPREME COURT. 5 Court of the World, to be modelled largely upon the Supreme Court of the United States of America. The Second Hague Conference made improve- ments in the manner of constituting ad hoc Inter- national Tribunals to try cases of discord arising between the Nations. But owing to the refusal of the Powers to agree to the establishment of an International Court composed of a small number of judges, fifteen in number for example, unless each Power was represented upon the Court in the person of a judge, the idea of a Supreme Court of the World sitting in judgment above forty-four Nations, as the Supreme Court of the United States sits upon the forty-eight member States of the North American Union, failed of realization. Since that time the advocates of the establish- ment of a Supreme Court of the World have argued that the appointment of judges of The Hague International Courts to try single cases, does not create in the personnel of such temporary and quickly disappearing Tribunals, that esprit de corps and absolutely fearless independence of the pres- sure of outside public opinion which are so abso- lutely necessary, except in the case of an excep- tional man, in order to obtain judicial judgments based upon the Law instead of political compro- 6 A WORLD COORT IN THE LIGHT OF mises based upon diplomatic needs and ends. And the advocates of a Supreme Court of the World composed of a small number of jurists appointed for life, maintain that in that way, the existence of the Tribunal, through the life tenure of its mem- bers, will be continuous like that of any regularly constituted Municipal Court with Ufe tenure. And that consequently, there will be ehminated from such an International Supreme Court the desire to arrive in formulating its opinion at a compromise which will satisfy both parties, and that decisions will be secured based strictly upon legal rather than upon political or diplomatic grounds. Happily, to test in a measure through concrete experience what may be expected from a Supreme Court of the World if once set up, we have an analogous example in the Supreme Court of the United States of America. Let us examine in how far that great Court, set up above a number of banded States that had been originally sovereign and that still retain much of their original sovereignty, has succeeded in settling in peace through its deci- sions the conflicting claims of the various States of the North American Union, at the beginning thirteen, now forty-eight in number. THE UNITED STATES SUPREME COURT. PART I. When the thirteen colonies revolted in 1775 against the mother country, and then in July, 1776, proclaimed their independence as free, sovereign and independent States, they sought to add, and were successful in their purpose, thirteen members to the family of Nations. Owing to the exigencies of the war, they found it necessary to perfect the loose bond of common opposition to the dictates of Great Britain that united them at first into a more firm alliance, which shoiild preclude the possibil- ities of their falling out with one another. Accord- ingly, the Articles of Confederation were drawn up and agreed to by the thirteen States. Before the colonies had broken with the mother land, a fruitful cause of trouble and jealousy between the colonies had been the uncertainty as to the boundaries dividing them. Some of these disputes over the frontier line between two colonies had been settled by some form or other of judicial appeal. For instance, back in 1650, the Dutch colony of New Netherland, and the English colonies of New Haven and Connecticut, who for a number 8 A WORLD COURT IN THE LIGHT OP of years previously did not agree as to the fron- tier which separated the Dutch and the English possessions in North America, as well as con- cerning the manner of regulating various matters that had arisen between the settlements of the two nationalities, agreed, largely upon the initia- tive of Governor Peter Stuyvesant of Amsterdam in New Netherland,^ to refer their dispute to a board of adjudication. This board, which con- sisted of two members appointed by the colony of New Netherland and two named by the colonies of New Haven and Connecticut, met in Connecticut, September 19th, 1650. The four members of this board signed a provisional agreement which regu- lated as fairly as possible for both sides the questions of minor importance, such as that of reciprocity concerning the exchange of prisoners fleeing from justice. In that agreement the Board of Adjudi- cation also agreed upon a provisional frontier line which was to divide the possessions of the Hollanders and the English upon Long Island as well as upon the main land. The colonies of both countries, New Netherland and New Haven and Connecticut, as well ' For the correctness of these names, the author is indebted to the learned librarian of the New York Historical Society, Mr. George Kelby. THE UNITED STATES SUPREME COURT. 9 as all of their subjects were to recognize that line until the United Netherlands and England in Europe had agreed upon a final and complete settlement of the frontier line. The agreement was in the nature of a modus vivendi merely, since it was to hold good only until it had been ratified, or rejected by the two motherlands. Still it was not only a settlement, so far as the colonies concerned had the power, by means of a quasi-covut, but also it was an appeal from the colonies for a final settle- ment of the questions at issue to the home govern- ments on the other side of the Atlantic. Before the matter could be taken up by the two govern- ments in Evu"ope, however, the United Netherlands and England were again plunged in a European war, one of whose results was the annexation by the English Crown of the colony of New Nether- land. Nevertheless, as early as the middle of the seventeenth centiuy, the differences over the bound- ary between the Dutch colony of New Netherland and the two English colonies of New Haven and Connecticut in North America, were adjusted in a peaceful manner for a period of several years by a mixed commission of representatives of the two contending nationalities. This historic event, of course, was well known to the delegates of New York 10 A WORLD COURT IN THE LIGHT OP (the successor of New Nctherland) and Connecticut in the Constitutional Convention.^ The thirteen colonies were practically, owing to llic lack of communication through the virgin forest, thirteen distinct settlements or commonwealths, separated from one another by the wilderness, and, through their commerce and their political relations, were in closer touch with the mother country than they were with one another. In addition, in colonial times, a custom gradually arose among the English speaking North American colonies to refer, sooner or later, their conflicting boundary claims, either to the King in Council or to commissions appointed by the Crown. This manner of carr>'ing the boundary disputes of the colonies to the final judgment of the sovereign aided by his privy council or a commission of his appointment for each case resulted no doubt from the fact that the King in Council was the bond of union not only between England and her colonies but also between each one of the colonies and one and all of the other colonies. In other words, the relations of the colonies to one another and to the * Ebcnezcr Hazard: SlaU Papers, Philadelphia, 1794, Volume II., pages 154-173. — Charles J. Hoadly, Rrcords of the Colony and Pliinl'. In the Dred Scott case, when the Federal Supreme Court was wrestling with the political question involved in the contest between the free and the slave States, as to where and how far the institu- tion of slavery should be allowed to spread, the individual members of the Court were undoubtedly influenced by their individual political views and the section of the country from which they were appointed. Thus the Chief Justice, Taney, a Marylander — and Maryland was a slave State — who had owned slaves himself, whose ancestors had owned slaves, and who was a strict constructionist in his view of interpreting the Federal Constitution, was besides a Democrat, and the Democratic Party had become the pro-slavery party of the Nation. Of the other five members of the Tribunal who likewise declared the Missouri Compromise unconstitutional four were citizens of slave States. Wayne came from Georgia, Campbell from Alabama, Catron from Tennessee and Daniel from Virginia, all four slave States which afterwards seceded from the Union. Justice Grier, the sixth member of the Court, who THE UNITED STATES SUPREME COURT. 107 voted to declare the Missouri Compromise uncon- stitutional by concurring with Taney's opinion, while a citizen of a free State, Pennsylvania, was a Democrat in his bringing up and in his appoint- ment to the bench. Pennsylvania was still at that time what it had been for many years before, a Democratic State, having cast in 1856 her electoral vote for James Buchanan, who was President of the United States when the judg- ment in the Dred Scott case was handed down. Indeed he was the only Pennsylvanian who had reached the Presidency. Buchanan, a firm defender of the slave power, repeatedly upheld, before the Dred Scott case came up for trial, in his speeches and public writings the constitutionality of the Missoiiri Compromise, while after the United States Supreme Court had pronounced in the Dred Scott case that compromise unconstitutional, thereby opening the territories north of thirty-six degrees thirty minutes to slavery, Buchanan said not a word in favor of the Missovui Compromise as had been his habit years before/" On the contrary, the Presi- dent, who was advised in advance of the decision ™ The Works of James Buchanan, edited by John Bassett Moore, Philadelphia, Volume IV., page 28, Volume VII., pages 386-387, Volume X., page 459 et seq., Volume XI., page 11. 108 A WORLD COURT IN THE LIGHT OF of the Court by two of its members, upheld the decision of the Court declaring the Missouri Com- promise unconstitutional 7' And Buchanan used his great influence to persuade Grier, his fellow Pennsylvanian, to go on record against the consti- tutionality of the Missouri Compromised^ Justice Nelson who held that Dred Scott remained a slave in Missouri on the ground that the State Law of Missouri decided the status of Scott, but who, while actually agreeing with the majority of the Court that the Missouri Compromise was unconstitu- tional, would not join in giving an opinion to that effect, was a Democrat in politics and came from New York, a free State. His opinion was in the nature of a compromise decision, in that he would not publicly express himself upon the question of the Missouri Compromise. The two dissenting members of the Tribunal were Justices McLean and Curtis. The former was from Ohio, a free State, was himself a Free-Soiler and in addition several times was a strong candidate for the Republican " The Works of James Buchanan, edited by John Bassett Moore, Philadelphia, Volume X., pages 106, 341. " The Works oj James Buchanan, edited by John Bassett Moore, Philadelphia, Volume X., page 106. THE UNITED STATES SUPREME COURT. 109 nomination for President J^ Curtis, who came from Massachusetts, a hot anti-slavery State, was a Whig and owed his appointment to the bench by President Fillmore to Daniel Webster, who had been one of the leaders of the anti-slavery forces/* Time has proved that Justice Nelson, who belonged to the pro-slavery Democratic Party, but who came from the free State of New York, was the wisest of all the members of the Court in that he favored a decision which was a compromise. The eagerness of the majority of the Tribunal after Buchanan's election to the Presidency to hand down a decision in favor of the expansion of slavery within the Union, so far from settling the con- troversy in favor of the slave power, ultimately destroyed slavery where it existed under the protec- tion of the Federal Constitution. For the judgment of the majority declaring the Missouri Compromise unconstitutional insured the Civil War. Analyzing the reasoning in the opinions given by the majority of the Court in the Dred Scott case, Professor Corwin of Princeton University '' James Ford Rhodes : History of the United States from the Com- promise of i8jo, New York, 1896, Volume II., pages 179, 182, 184. ^* James Ford Rhodes: History of the United States from the Com- promise of 18 jo, New York, 1896, Volume II., page 251. 110 A WORLD COURT IN THE LIGHT OF pertinently says:^* "When, as in this case, the student finds six judges arriving at precisely the same result by three distinct processes of reasoning, he is naturally disposed to surmise that the result may possibly have induced the processes rather than that the processes compelled the result, though of course such surmise is not necessarily sound; but when he discovers further that the processes themselves were most deficient in that regard for history and precedent in which judicial reasoning is supposed to abound, his surmise becomes sus- picion; and finally when he finds that beyond reasoning defectively upon the matter before them, the same judges deUberately gloss over material distinctions (as for example, in this case, the dis- tinction between sojourn and domicile) and ignore precedents that they have themselves created (as for example, in this case, the decisions regarding the operation of State decisions upon questions of comity) his suspicion becomes conviction. The Dred Scott decision cannot be, with accuracy, written down as usurpation, but it can and must be written down as a gross abuse of trust by the body which rendered it." ^* Edward S. Corwin: The Doctrine oj Judicial Rtriem, Princeton, 1914, page 156. THE UNITED STATES SUPREME COURT. Ill In reading the above criticism it should not be forgotten that the two dissenting justices also allowed political considerations to influence their opinions. With all their learning and sense of honor, the members of the Court were human. And even though they were protected by a life tenure in the positions that they held, and, so far as human ingenuity could provide, raised above and outside of political parties and interest, still they were men swayed by human passions. In a question which went, in the consequences that would flow from its solution, to the very vitals of the economic life of one of the two hostile sections into which the American people, as a restilt of slavery, had become divided, it was impossible for the nine members of the Supreme Covirt of the United States to divest their individual views entirely of their political and geographical sympathies. And which- ever way they gave their individual judgments, they were sure to be attacked by one political party or the other as having violated their duty and been influenced by political considerations. So it was that all these judges, who were able and capable men, with a high sense of honor, were neces- sarily swayed more or less by their political training 112 A WORLD COURT IN THE LIGHT OP and sympathies in reaching the conclusions which they did in the Dred Scott case. Their views were hotly criticised by the political party which held views opposed to their individual judgments. And the majority were accused by the Republicans of having exceeded their powers in the judgment at which they had arrived. Of late years, too, in the United States, not only the State Courts and the lower Federal Tribunals have been attacked vigorously, by certain sections of the community because of the decisions that the judges of those tribunals gave (until the judges have been in a measure terrorized by public opinion); but even the Supreme Federal Tribunal of the Nation has been adversely criticised on account of its decisions. So far has this movement of attack of judicial decisions by the public gone in America, that the recall of judicial decisions and even the recall of judges have been advocated openly by men of high position and distinction as well as by others who knew little or nothing about what they have so glibly attacked and adversely criticised. In other words, the splendidly devised American Federal judicial system has not been able to satisfy all public opinion. During the trial of the Dreyfus case in France THE UNITED STATES SUPREME COURT. 113 before the Cour de Cassation — the highest civil tribunal of France, whose members were judges assuredly learned in the law both by years of study and practice on the bench — that high Court was attacked as being partisan and non-judicial in its decision in that celebrated case, just as years before the Supreme Court of the United States was accused of gross partisanship in its decision in the equally celebrated Dred Scott case. Those two Courts, though judicial tribunals, whose members were trained judges, with life appointments, did not satisfy all public opinion any more than the ad hoc Hague International Courts have satisfied all people. Such a Supreme Court of the World, however, as the American delegation at the Second Hague Peace Conference was instructed to urge upon the Nations, would not be truly a Supreme Court of the World, in the sense that the Supreme Court of the United States of America or the Cour de Cassation of France are Courts. For back of such a Supreme Court of the World there would not be, any more than there was back of the International Tribunals which sat respectively upon the Alabama Claims and the Bering Sea Fur Seal cases, the power of compulsion. Just as in those two specific cases, as likewise in the Venezuela and other cases referred 114 A WORLD COURT IN THE LIGHT OP to an International Court named ad hoc, the exe- cution of the judgment in every case taken to such a Supreme Court of the World would rest upon the willingness of the contending Nations to bow before and carry into execution the decree of the Court. It is necessary not to forget, besides, that were such a Supreme Court of the Nations in existence, between it and the Municipal Courts of the indi- vidual Nations, there would exist, just as between International Tribunals named ad hoc and the Municipal Courts of the individual Nations, there does exist, an additional radical difference which has not been often observed. In the cases arising between individuals that are taken to the bar of Municipal Tribunals, the judges do not have to contend with their personal feelings in favor of one side or the other. Practically in all cases the judges do not know the litigants and the feelings of the judges are not enlisted strongly for one party or the other. If a case arose where the feelings of a judge were deeply stirred for any cause in favor of one side or the other, it would be improper for him to sit to try that case. On the contrary, when Nations appear before an International Tribunal whether named ad hoc or sitting permanently, the litigants are not unknown THE UNITED STATES SUPREME COURT. 115 to the individual judges. In cases between Nations, the way a question at issue is decided in favor of one side or the other may materially affect not only the interests of the litigant Nations, but also, favorably or adversely, the future status of other Nations that do not appear in the case at all. And as a conse- quence in pohtical cases, the feelings of the individual judges of an International Tribimal, whether it be merely temporary or continuous in its status, will be more or less influenced by the interests of their own coxmtry, according as its interests directly or in- directly are more or less affected by the judgment to be rendered by the Court. In those cases where the American Federal Supreme Court is called upon to judge between two individual member States of the Union, the con- ditions are more similar to the cases where individual citizens are the contestants before it than in the international cases when Nations appear as litigants before an International Tribunal. Why? Because when two States of the Union appear at its bar as litigants upon a question which is purely a bone of contention between them, not only is the power of all the United States, owing in part to the pressure of the outside world, behind the Cotirt to enforce its judgment, but also the future safety and existence 116 A WORLD COURT IN THE LIGHT OP of neither State is really endangered by the decision. The individual States of the Union are not exposed to be divided up and annexed in parcels or in tola to some of the other States as is the case with members of the family of Nations. For between two member States of the United States the ques- tion of which is the stronger independently of the legal merits of any controversy cannot arise. This immunity from dismemberment and absorp- tion of one member State by another within the United States of America is due in part to the need of all the forty-eight States which constitute the Union to remain united and live in peace together in order to afford a united and strong front for mutual protection against the other Nations of the world. The elimination of the danger of absorp- tion of one member State of the Union by another in contradistinction with the desire of members of the family of Nations to conquer and absorb another Nation, is due in part also to the fact that within all the bounds of the United States of America there is entire freedom of trade and migration, while between the members of the family of Nations there is restriction of trade and some restriction of migration. Consequently, the individual State pre- judices of each member of the American Federal THE UNITED STATES SUPREME COURT. 117 Supreme Court are not as strongly aroused, except in instances like the Dred Scott case, as are the national prejudices of the judges of International Courts in all cases which affect the relative power and influence of Nations. * In those cases between sovereign Nations, upon whose solution depends the futvu-e power of one or more of the litigant Nations, and possibly of other Nations not directly parties to the controversy, there is no more reason to expect the elimination of the nationalistic feeling of the individual judges, whether nationals of the contestants or not, than it was possible for the individual members of the Supreme Covirt of the United States of America to eliminate their political feelings in the Dred Scott case, in which was involved the fundamental political question of whether the free or the slave States of the North American Union should ultimately win the ascendency in the country. And consequently, in sitting upon such cases, every judge of a Supreme Court of the World would in some degree be influ- enced, in the present organization of the family of Nations, by the interests of his own country. Commenting on international questions which might arise involving matters concerning a Nation itself as an integral entity, the Marquis of Salisbury, 118 A WORLD COURT IN THE LIGHT OF Prime Minister of Great Britain, in a dispatch addressed in March, 1896, to Sir Julian Pauncefote, the British Ambassador, in Washington, said with pungent force :^® "If the matter in controversy is important, so that defeat is a serious blow to the credit or the power of the litigant who is worsted, that interest becomes a more or less keen partisanship. Accord- ing to their sympathies, men wish for the victory of one side or another. "Such conflicting sympathies interfere most for- midably with the choice of an impartial arbitrator. It would be too invidious to specify the various forms of bias by which, in any important con- troversy between two great powers, the other members of the commonwealth of Nations are visibly afifected. In the existing condition of inter- national sentiment, each great power could point to Nations whose admission to any jury by whom its interests were to be tried, it would be bound to challenge; and in a litigation between two great powers the rival challenges would pretty well exhaust the catalogue of the Nations from whom competent and suitable arbiters could be drawn," ^•john Bassett Moore: International Arbitrations to which the United States has been a parly, Washington, 1898, Volume I., page 964. THE UNITED STATES SUPREME COURT. 119 Men who will at all times rise above their per- sonal feelings and always try to find in their con- science the right thing to do, and then do it regard- less of consequences to themselves, are rare, extremely rare. It is only such men, however — and how few and far between such men are, history tells us only too well — that could be depended upon at all times, whether sitting in an International Tribunal named ad hoc or a Supreme Court of the Nations, to avoid, in judging between the Nations, all ele- ments of an opportunistic compromise and to strive honestly to give only a judicial judgment. A man of that type means the embodiment of the highest kind of courage. But woidd even a man of that high and noble stamp of character, deliberately decide in favor of what he believed would eventually destroy or seriously weaken and impair the power of his own country at the council board of the Nations? The individual judgments in the Dred Scott case seem to answer "no." Supposing, however, that all the members of the family of Nations agree in setting up such a Supreme Court of the World, it should not be forgotten that there will be no force outside of the family of Nations compelling them to bow to the judgments of such a Tribunal. In that essential respect a 120 A WORLD COURT IN THE LIGHT OP Supreme Court of the World would differ radically from the Supreme Court of the United States of America. For at all times since the North Ameri- can English-speaking colonies declared their inde- pendence, the member States of the United States of America, whether in the time of the Confedera- tion or in that of the Union have had the con- sciousness of the existence of the powers of the rest of the outside world to induce the member States of the United States of America to bow in the begin- ning before the judgment of the Trenton Inter- State Court and afterwards before the judgments of the Federal Supreme Court. And yet when the States of that Union were divided into two camps of almost equal power that differed radically over an economic question which went to the core of the well-being of the Nation, the existence of that great outside force represented by the other Nations of the world, could not induce the member States of the North American Union to refrain from taking up arms. Regardless of the judicial judgment of the Federal Supreme Court about the slavery ques- tion, the two groups of States went to war. And it took four years of bloody and costly civil strife to decide which was the stronger. After the judgment of the Court had been THE UNITED STATES SUPREME COURT. 121 reversed by civil war, and slavery abolished in all the Union, the individual member States of the Union have once more bowed again and again to the judgments of the Federal Supreme Court. But if the Supreme Court of the United States could not by a judgment avoid a civil war within the North American Union over a political question upon which the member States were divided into two fairly equal groups, is it likely that a Supreme Court of the World will by its judgments be able to compass in peace the political quarrels dividing the powers of the world into two fairly equal groups ? For in the latter case there will not be any force outside of the Nations of the world to restrain them from going to war as was the case in 1861 for the member States of the North American Union, who neverthe- less, in spite of the fact that there were many great and powerful Nations outside of the United States jealous of the power and success of the Union, resorted to war to settle a fundamentally important economic question of difference upon the opposing sides of which the member States of the Union had aligned themselves in two almost equally powerful groups. Or to take an actual instance from the present politics of the world. To-day the Great War which is raging in Europe, raises the question: — If a 122 A WORLD COURT IN THE LIGHT OP Supreme Court of the World always in being, com- posed of fifteen judges appointed for life, had been sitting at The Hague in June and July, 19 14, would the existence of such a Tribunal have prevented the war any more than did the existence of the actual machinery for calling into being an International Court at The Hague for a single case? The Nations of Europe failed in this instance, even after Presi- dent Wilson had offered his good offices by way of mediation, to avail themselves of the present facilities for submitting disputes between Nations to the judg- ment of an international judicial Court, appointed to sit at the Dutch Capital to judge the one single case for which each individual international Tribunal is imder the present Hague conventions called into existence. If a small permanent Court — composed for example of fifteen judges — had been constantly in being at The Hague to judge all manner of cases of dispute arising between Nations, would the Nations of Europe have called upon the permanent Tribunal to settle the causes leading to the present war? In view of the deep antagonisms existing between the Teutons and the Slavs in the east of Europe, between the Teutons and the French in the west of Europe, between Germany and Great Britain through the jealousy for commercial supremacy aroused by THE UNITED STATES SUPREME COURT. 123 the keen competition for over-sea commerce and other deep lying causes stretching far back in the historic development of Europe, it is hard to believe that a Supreme Court of the World could have com- posed the quarrel of the European Nations in 1914 any better than the actual present international judicial machinery provided for by the Second Hague Peace Conference could have done it, had the Nations appealed to one of The Hague International Courts named ad hoc. For no more than one of The Hague ad hoc Tribunals could a Supreme Court of the Nations have decided which group of Nations was the stronger, and so entitled to appropriate for itself the lion's share of the commerce of the world. That decision is now being sought in trial by battle. It would seem then, that, in the final analysis, the only way a Supreme Court of the World could force individual Nations to bow before its decisions in all cases, would be the development of an inter- national executive with sufficient power at its com- mand to enforce the decisions of that Supreme Court of the World, just as behind the Supreme Covirt of the United States of America has stood, always excepting in the Dred Scott case, the overwhelming power of the Nation as against any one single member State of the North American Union. 124 A WORLD COURT IN THE LIGHT OP PART VIII. Is there any force, however, to urge the family of Nations to form and enter into a world wide organization established for the purpose of elimi- nating war as the ultimate manner of settling their serious disagreements, and to replace war by the application of the rules of the Law between Nations as interpreted by a Supreme Court of the World seeking to award justice? Evidently there is no force or power outside of the family of Nations to compel them to form such a world confederation with the aim of preventing any member Nation from breaking out into war. If there is no force outside all the Nations of the world compelling them to hold the peace among themselves comparable with the force representing the Nations of the world outside of the North American Union, which compelled the individual States of that Union to gradually unite into the single Nation of to-day and finally to bow before the decisions of the Supreme Court of the United States, it should not be forgotten that taere is, however, within the Nations of the world themselves, a force driving toward peace. This force arises from the THE UNITED STATES SUPREME COURT. 125 fact that the destruction of Hfe and wealth wrought by modem war as well as the destruction of wealth caused by the preparation in times of peace for war is so tremendous that immense sviifering both im- mediate and for the future are thereby inflicted upon the inhabitants of the belligerent Nations, and in- directly in many cases upon the neutrals. As with the opening of the present century the people have come to realize better the sufferings imposed by war, they have dreaded more and more the outbreak of war, and have become by degrees less belligerent in their passions. In addition, owing to the inter- locking more and more of the commerce of each Nation directly or indirectly with that of other Nations the world over, the bill for the wealth destroyed now by war must eventually be paid in a more or less degree by every Nation, even by the neutrals. For if the belligerent States become impoverished and bankrupt by war, they are in no condition afterwards to trade with those that remain neutral to the same extent that they did before the beginning of hostilities. And, though a Nation may remain at peace and neutral during a war, still, if its best customers are impoverished by war the neutral Nations must suffer in the long run owing to the inability of its former good customers to continue 126 A WORLD COURT IN THE LIGHT OP trading with the Neutral powers on the same scale as before the war. The gradual realization that the struggle for life is made more difficult for the sur- viving mass of humanity as a result of the destruction of wealth by war will strengthen the desire of man- kind to eliminate war, as far as possible, by a refer- ence, whenever it is possible, of international differ- ences to judicial settlements instead of an appeal to arms. One important factor helping the desire for the elimination of war, is the increasing realization of the people that war, among other effects, causes a serious impairment to the well being of the human race through the premature destruction of the young men of superior physical and mental attain- ments, for it is they who are naturally sent to the front while the weak and feeble in both mind and body are more likely to be left at home. In that respect, war reverses for humanity the processes by which the human race seeks to improve the breed of horses, cattle and other domesticated animals. Thus, for instance, on every stock farm stallions, who are chosen with great care from among their fellows expressly because they are possessed of superior physical qualities over the average run of stallions, are kept solely for the object of serving the THE UNITED STATES SUPREME COURT. 127 brood mares for the purposes of breeding. Not only are these stallions chosen because of their fine physical attributes to serve the brood mares, but also the greatest care is taken in choosing the mares which are best fitted to be given to each individual stallion for the purpose of the reproduction of their species. In that way the race of the noble horse, who has labored so long and well for mankind, has been kept up and improved. In the case of human- ity, however, the men best suited physically and mentally to marry and father the next generation are, nattirally, in war times, the first to be sent to the front, while the weaklings are the last to go. Consequently, a greater proportion of the children of the next generation are fathered by men of less desirable physical and mental types than usual, and some of the impairment of power of these weaklings is transmitted to their children, no matter how superior physically and mentally may be the woman with whom they each individually mate. The desire to avoid war, because of the fear of the loss of life and the destruction of property and the waste of labor that result from war, is not a sufficiently strong force to cause Nations in all cases of difference to resort to international judicial proceedings rather than to war to settle their 128 A WORLD COURT IN THE LIGHT OF disputes. The desire to possess what others already have in many instances is so strong as to lead to a trial by battle to find out which side is the stronger. The experience to be found in the history of humanity would seem to show that if all war between Nations is to be avoided, then some inter- national or supemational force must be devised which will compel Nations to take their diflferences into International Courts, or the International Supreme Court of the possible future, just as within Nations a force has been devised which compels individuals to take their disputes into Municipal Courts. If it was not for the power of the sheriff, with all the power of the State looming up behind him, how many individuals would refuse to appear before Municipal Courts who now quietly obey the summons to appear before the Municipal Tribunals. And in questions which affect the vital interests of Nations, it may be expected that the Nations will not go into Court to settle such questions unless there is a force sufficiently strong to compel them. In what way is the upbuilding of some general international organization of sufficient force and power to compel all members of the family of Nations to desist from war and submit all their differences, both legal and political, to one of the THE UNITED STATES SUPREME COURT. 129 International Courts named ad hoc at The Hague, or to a Supreme Court of the World most likely to be expected or attained? To successfully establish at The Hague a Supreme Court of the Nations of the world, modeled upon the Supreme Court of the United States of America, to settle the differences of the Nations, involves a problem different in many respects from that which confronted the thirteen American States when they originated and set up their present Federal Supreme Tribunal. In the original thirteen American States, with a local exception in part of Pennsylvania, the people of all the States spoke, with slight variations, the same English language; and a common tongue is perhaps the most important basis of nationality. And these thirteen States were drawn closer to one another and impelled to join together because of their fear of the outside world. The Nations of the world, unlike the original thirteen North American States, do not speak one language, but on the contrary, speak even more tongues than there are separate and individual Powers in the world. And the Nations of the world are not driven by fear of a power or force outside of their circle into a common union whose individual members 130 A WORLD COURT IN THE LIGHT OP shall submit their diflferences to a Supreme Court of the World, in the same way that the member States of the Confederation of the United States of America were compelled, by the fear of the outside world, to join together more closely and agree to submit their discords or quarrels to the Supreme Court of the United States. The teaching of the past efforts of humanity to minimize or eliminate war from the politics of the world show that this cannot be accomplished in the international sphere of the family of Nations by one master stroke of statecraft, but that that aim can only be attained, if it is attainable, by the slow and gradual processes of evolution." All attempts up to now to devise some scheme or plan to altogether eliminate the scourge of war from human affairs have failed, just as all efforts so far to stamp out consump- tion and cancer have failed. But on many single occasions, war has been avoided by substituting for war an appeal to judicial proceedings. In such cases, however, no attempt was made to eliminate all war "Thomas Willing Balch: L' Evolution de l' Arbitrage International Revue de Droit International el de Legislation ComfiarSe, Brussels, 1908, also reprinted in book form at Philadelphia, 1908. — John Bassctl Moore: The Peace Problem: Columbia University Quarterly, June, 1916. THE UNITED STATES SUPREME COURT. 131 for all time from human affairs. Consequently, obedient to the natural law of evolution, in our efforts to replace international war as much as possible by international justice as the final judge between Nations, we should seek to advance the cause of international justice step by step rather than hastily and prematurely to establish a world confederation with a Supreme Court of the World. Such a Supreme Tribunal of the Nations would at present lack behind it that overwhelming power to enforce its decisions which is found personified back of the judgments of Municipal Tribunals in all the power and force of that particular Nation of which each individual Municipal Court forms a part. As a consequence such a Tribunal, just as the International Tribunals now instituted ad hoc under The Hague agreements, practically could only deal with legal cases, that is those cases which, because no vital interests of Nations were at stake, the Nations would be willing of their own accord to bring to its bar. It may be perhaps that through the assembling at recurring intervals of Peace Congresses at The Hague, such as those of 1899 and 1907, some- thing like a Parliament of the Nations will be developed gradually in time; that the present pro- 132 A WORLD COURT IN THE LIGHT OP visions for the erection of International Tribunals ad hoc will be successfully elaborated into a Supreme Court of the World, just as the Inter-State Courts provided for in the ninth article of the Articles of Confederation of the United States of America were subsequently developed into the Supreme Court of the United States; and also that an international executive with some power at its disposal to enforce its will, will eventually, by degrees, be born. In that way, if so much is once successfully accom- plished, the family of Nations would be on the high road to a loosely formed world confederation. That would reverse the process in which the period of civilization immediately preceding our own period of civilization reached in its old age — through the conquest of the then known world by the Roman Empire, and the consequent extension of the Pax Romana wherever the power of Roman arms extended — a semblance of world peace. It should not be forgotten, however, that after the great summer of the Roman civilization had closed, there succeeded a long winter of more than four centuries, before our own summer of civiliza- tion began. As a number of successive civilizations have been bom and died in the past, it is altogether likely that our Heavenly Father in his own good THE UNITED STATES SUPREME COURT. 133 time — when our own period of civilization has been sufficiently benumbed by the socialistic status which seems to be growing up within our own civilization, as socialism though not known by that name grew towards the close of the Roman period — ^will pro- vide once more, as so many times before, the Bar- barians to end the present summer of civilization and begin the next great winter that must precede the birth of the next period of civilization.^^ It is well in dealing with such problems to remember the wise words of the Emperor Marcus Aurelius, d propos of his signet ring: "This, too, will pass away." So in striving to maintain peace among the Nations by the application of international justice to settle the quarrels of the Nations instead of by bloody and destructive war, let us remain practical in our aims instead of being led by visions and dreams to possible disappointment. ^*W. M. Flinders Petrie: The Revolutions oj Civilization, igii. 134 A WORLD COURT IN THE LIGHT OP PART IX. Both the success and failure of the Supreme Court of the United States of America in preventing civil war within the United States would seem to warn that too much should not be expected in the matter of eliminating war between Nations by any sudden change in the present method of creating International Judicial Tribunals ad hoc into a per- manent Supreme Court of the World composed of a small number of judges actually representing in their own persons only a small number of Nations. If such a Tribunal is really to help in keeping by its decisions peace among the Nations when political disputes arise, something else besides the setting up of such a Court must be devised and developed by the family of Nations. To find that something will be no easy task. In the affairs of Nations, as in other spheres of action on and in our planet, the forces of dynamics must never be lost sight of. While all sovereign Nations are theoretically and juridically equal, and count the one as much as another in deciding the development of International Law and the manner THE UNITED STATES SUPREME COURT. 135 of its interpretation/® nevertheless, some, owing to a variety of reasons, are actually stronger than others in shaping the politics of the world. And the relative strength of the Nations to one another, obeying a universal law of nature, are in a con- tinuous state of flux. Some of the strong Powers of a half century ago have lost part of their pre-emi- nence, while others that were then comparatively unheard of, have not only gained in prestige, but because of their practically untouched virgin resources, give promise of rising still higher in the councils of the world. Also other Nations, which, in past centuries, were strong Powers and had fallen behind in the race of the Nations because they had exhausted their available resources and failed to adapt themselves to the change wrought in the world by the new discoveries of mankind, seem after lying fallow for a time to be rejuvenated by a new birth. While history shows conclusively that the appli- cation of international justice as a means of settling ^* Emerich de Vattel : Le droit des gens; ou, principes de la loi natur- elle, Amsterdam, 1775, Preliminaires, Sec. 18: "Una petitere publique n'est pas moins im Etat souverain que le plus puissant royaume." Chief Justice Marshall in The Antelope, 10 Wheaton, United States Supreme Court Reports, 1825, page 122 said: "No principle of general law is more universally acknowledged than the perfect equality of Nations. Russia and Geneva have equal rights." 136 A WORLD COURT IN THE LIGHT OP the quarrels of Nations has proved itself often a successful and precious instrument to avoid war, nevertheless, ever since the judicial settlement of the Alabama Claims in 1872 by the Geneva Tribunal, it has become more and more clear with every case of difficulty between Nations that has been decided since that time either by an International Court on the one hand, or by war on the other hand, that the disagreements which arise between Nations naturally divide themselves into two great categories. In the history of the Supreme Court of the United States this same dual division of the controversies that might arise between the member States of the United States was observed at least as early as 1838. In the case of Rhode Island and Providence Plan- tation vs. Massachusetts, Justice Baldwin com- mentating on the differences that could arise between the member States of the Union, said they might either be on the one hand of a civil or judicial nature, and on the other hand, of a political character. In a dissenting opinion in the same case. Chief Justice Taney spoke of judicial and political cases, and defined the difference between the two groups of cases to which he applied those terms. To desig- nate the two great divisions into which the disputes arising between Nations seem naturally to divide, THE UNITED STATES SUPREME COURT. 137 the French publicists applied to them respectively the terms cas juridiques and cas politiques. Among English speaking international jurisconsults, West- lake seems to have been the first to name these same two great classes of cases into which international difficulties naturally divide, respectively on the one hand legal or juridical cases, and on the other hand political cases. Commenting on this aspect of international relations, Westlake, a profound and clear thinker, has pointed out that, as is proved by the submission of the Alabama Claims case to the Geneva Tribunal, a great deal may be hoped for from the submission of dilTerences between Nations to International Courts of Justice. Then he con- tinues:*" "I am hopeless of good results from general treaties for arbitration, never having seen, or been able to devise, any formula that can distinguish with sufficient precision the cases in which it is an applicable remedy from those in which it could not be submitted to. We may say that it is suitable for cases of a legal character, not for those of a political one. And that distinction is probably intelligible enough for practical pvuposes, though not precise enough for a treaty." ^"Thomas Balch: International Courts of Arbitration, 18/4, 6th edition, Philadelphia, 1915, page 63. 138 A WORLD COURT IN THE LIGHT OF Professor Oppenheim, Westlake's successor in the WTiewell chair of International Law in Cambridge University, likewise has recognized this two-fold division into which the cases of disputes between Nations naturally are divided. At the same time he has pointed out that it is often difficult to say where one set of cases ends and the other begins.*' Among American publicists, Hershey likewise has recognized this two-fold division.*^ Elsewhere the present writer has maintained that the fundamental differ- entiation between legal or juridical cases on the one hand and political cases on the other hand was, that in the former class of cases the independence or future political development of Nations were not involved, while in the latter class they were menaced.^ *' Lassa Oppenheim: I tUernalional Law, 2nd edition, London, 1912, Volume II., pages 3-4. **Amos S. Hershey: The Essentials oj Inlernational Public LOla, New York, 191 2, page 321. • "* Thomas Willing Balch : Dijfftrends juridigues et poliliques dans les rapports des nations; Revue Ginerale de Droit International Public, Paris, 1914, page 181. — Legal and Political International Questions and the recurrence of War; a paper read before the American Philo- sophical Society held at Philadelphia for the Advancement of Useful Knowledge, April isth, 1916; Philadelphia, 1917, page 5; reprinted from the Proceedings of the American Philosophical Society. THE UNITED STATES SUPREME COURT. 139 Humanity in its eager desire to avoid the misery- entailed by war, hailed with delight the principle of mediation as sanctioned by the Congress of Paris in 1856, only to realize in a few years that mediation would not do away with all wars. Then the successful avoidance of a possibility of war between the United States and Great Britain by the judicial settlement by the Geneva Tribunal in 1871-72 of the Alabama Claims, encouraged many individuals to believe that by a recourse to similar International Courts named ad hoc war coiild be avoided more often in the future than it had been in the past. And the success attending the Inter- national Courts that judged in the Bering Sea Fur Seal case and other international disputes increased the hope that judicial settlements would more and more do away with war. Then the peoples of the world acclaimed with enthusiasm the call of the Emperor Nicholas the Second in 1898 to a Con- ference of the Nations for the purpose of reducing armaments, a result which unfortunately was not accomplished. But the Conference in 1899 and its successor in 1907 made provisions making it more easy to call into existence International Tribunals appointed ad hoc to decide between the Nations. These provisions filled the world with hope and 140 A WORLD COURT IN THE LIGHT OF expectancy. For up to that time, most of the pacifists, unlike the jurists, had not realized what the Geneva Tribunal of 1871-72 and its successor, the Paris Tribunal of 1893, had actually accom- plished in solving two troublesome international disputes by judicial settlements. To many of these people, the suggestions presented at the two Hague Conferences came as someting almost new. For they had not understood that already, in several cases. International Judicial Tribunals had judged between the Nations. Once more, however, the Nations have been dis- illusionized by the present Great War as to the possibility of avoiding all war by referring inter- national disputes to International Courts named ad hoc for judicial settlement. And partly as a result of this new light which has at last dawned on the world, much has been said and heard since the present titanic struggle began, about the creation of a Supreme Court of the Nations with the intent of securing to humanity world peace. In trying to build a permanent International Tribunal after the manner of the Supreme Court of the United States that shall judge successfully in all cases between the Nations, we must not think that it can be erected with its necessary adjuncts by THE UNITED STATES SUPREME COURT. 141 one Conference of the Nations, or even by one generation of humanity. The establishment of such a Court is an ideal that the human race may well strive at all times to reach. In actual fact great progress towards the realization of such a Court has been already accomplished. Indeed, the task before the Nations in setting up such a Court is not unlike that presenting itself to the mountaineer who wishes to climb a high but apparently inaccessible mountain top. He attempts to scale the peak from all possible and impossible sides. From each unsuccessful attempt he learns something about the problem confronting him. He may spend years before he realizes his object, and even in many cases he has only prepared the way for a climber of a younger generation to suc- ceed because of the discoveries made upon the mountain itself by the climber of the older genera- tion. Edward Whymper attacked the Matterhom or Mont Cervin for five years before he and Michel Croz found the way to the summit. Other, higher and more difficult peaks, for instance Gaurisankar and Kinchinjunga, still baflfle all attempts to reach their summits and seemingly give no promise that man will on his own feet ever attain their snow clad summits. 142 A WORLD COURT IN THE LIGHT OF The practical development of mountaineering, since Doctor Paccard of Chamonix found the way to the summit of Mont Blanc in 1787,*^ has devel- oped a set of primary rules which every first rate climber knows must be observed if he wishes to succeed. The first and most important of these rules is to go slowly. As the mountain climbers of Italy so truly say: Chi va piano, va sano, Chi va sano, va lontano; a truth embodied also in the well known maxim of the French mountaineers: Plus doucemenl on monte, Plus vile on arrive an sommct. Or as an Italian guide once expressed it to the writer: Chi va forte, va a la morte. An apt instance of the fact that political and social developments can be accomplished only gradually is shown by the slow but steady forma- tion of that political and social organism which to-day is the virile French Nation. One of the early Kings of Paris who wished to extend his territorial domains and was actually thinking of ** Douglas W. Freshfield: The Growth of a Ugend: Paccard v. BaJmal: Alpine Journal, London, 1913, Volume XXVII., page aoj. THE UNITED STATES SUPREME COURT. 143 capturing and annexing by force of arms the neighboring town of Saint Denis, a short distance to the north of Paris, took counsel with his leading men as to the advisability of risking such a step. One of his counsellors in commenting on the prop- osition, said: Cest le premier pas qui coute. With the addition of that little burg to the landed pos- sessions of the feudal house that rtiled in early Paris, began that territorial growth in the He de France, round Paris as the kernel, which resulted in the course of centuries in the creation of the French Nation. At the end of the present Great War, the family of Nations, realizing the immense losses caused by the conflict, perhaps will feel inclined to attempt, in order to avoid another such cataclysm, to estab- lish at once through a Third Hague Peace Con- ference some sort of nebulous world organization whose aim it will be to prevent the outbreak of war in the future. If such an attempt is made, the plan to have any success at all, must be based on the idea of doing justice to all, and not, as the famous Grand dessein of Henri Quatre, of placing one group of Nations in control rather than another, no matter with how clever a subterfuge the attempt to gain power or leadership for one Nation or group of Nations may be at first disguised. 144 A WORLD COURT IN THE LIGHT OP So long as questions may arise involving in their solution the independence and future political power of Nations, one of the best ways to work for the maintenance of peace among the Nations would seem to be, while perfecting so far as possible the constitution of the present International Tribunals named ad hoc, to seek to eliminate so far as possible the probable causes for war. Thus, for example, the United States of America could give in the Alaskan lisiere to the Dominion of Canada in ex- change for a little land somewhere else, say the islands of Campobello and Grand Manan, two narrow strips of land of sufficient width to allow the building of two railroads from the hinterland across the lisibre to two of the fiords that bulge into the lisibre with sufficient land on each fiord to allow two ports to be established. In that way merchandise destined for the hinterland of the Alaskan lisiere could be discharged at those ports and shipped into or out of the Canadian territory without being subjected in any way to or delayed by the tariff duties of the United States.*" Then in order to send goods by way of the Pacific Ocean to the Yukon district of ** Thomas Willing Balch: La Fronlihre Alasko-CanaJienne, Revue de Droit International ct de Legislation Comparie, Brussels, 1902, pages 5-23: The Alaska Frontier, Philadelphia, 1903. THE UNITED STATES SUPREME COURT. 145 Canada, it would no longer be necessary, in order to avoid the payment of American customs duties, to send the merchandise by way of Port Simpson. It could be sent via some port more to the north, like Skagway, for instance, and directly over the White Pass to the Yukon Valley. Also the Law of Neutrality could be revised in the interest on the one hand of curtailing the area of war once it had broken out, and on the other hand of shortening so far as possible its duration. Thus if all the members of the family of Nations gave their adhesion to a more exact definition than now exists of the rights of neutrals as well as their duties vis-h-vis of belligerents, the danger of futvu^e wars extending the area of conflagrations beyond the limits of the original contestants would be lessened. A vexatious and difficult question touching the inter- course and well being of the members of the family of Nations is how to insure the freedom of the seas for peaceful commerce in times of war as well as in times of peace. Can any plan be devised by which all Nations at all times will feel secure in their over- sea trade? If that could be successfully accom- plished, a great stroke for the preservation of inter- national peace wovild have been struck. Above all, as was suggested many times and in 146 A WORLD COURT IN THE LIGHT OP many quarters before the Great War began, and as has been repeated recently by the Pope, Benedict the Fifteenth, a real effort should be made by the Nations to reduce their armaments upon the basis of a quid pro quo. That may be looked upon as a sine qua non of any real attempt to do away with war. It is possible that the undoubtedly increasing growing desire during recent years for international peace among mankind, may cause Nations who are more or less contiguous and neighbors to one another, even though speaking different languages, to draw, owing to the fear of attack from other quarters of the world, closer together in some manner so as to avoid war among themselves and so the better be able to resist attack from some other section of the planet. For instance, the Swiss Cantons, though speaking three different languages, French, German and Italian, were drawn gradually together for mutual defence, owing to the fear of aggression by the powerful States that had grown up all about them. A test of the practicability of establishing a World Court would be for allied Nations, as Britain, France and Italy, for instance, being willing to es- tablish a Supreme Court that should judge all questions, political as well as legal, without ex- THE UNITED STATES SUPREME COURT. 147 ception, arising between themselves. If Nations that are allies in war are not willing to agree on such a Cotirt for themselves, how can all the Nations of the world be expected to agree on a Covirt which shall judge without reserve all questions arising be- tween them? Perhaps the world in time may become divided into several distinct groups of Nations based upon geographical reasons. And the members of each group, because of the fear of attack of some other group also formed on geographical alignment, may seek to minimize and eliminate the chances and causes of war possibly arising between the Nations belonging to the same group. Once such a stage in human polity has been reached, perhaps it may be possible in the future, to arrange for some scheme of world wide organization that will tend gradually to reduce the recurrences of war to the minimum. 148 A WORLD COURT IN THE LIGHT OF PART X. The great difficulty in enforcing peace throughout all the world, however, is that there is no force out- side of the world to drive the peoples of the earth to remain united in order to avoid war among them- selves. And this is true whether the peoples be organized as separate Nations as at present, or according to any other scheme that may be devised. If the peoples of the world are once united into a world confederation, or a single world State, in the absence of any outside force to make it their mutual interest to hold together for protection against outside aggression, the desire of the peoples in various parts of the earth to gain more than their fair share of the fruits of the earth will, judging by the past history of humanity, result in war. That is the weak point in all plans for maintaining world peace. All Nations, no matter with what grandiloquent and honeyed phrases their aims may be expressed, are essentially selfish in their foreign policy. Nations do not go to war to help another Nation out of regard for the latter. Nations go to war solely for their own interests. So it has been in the past, and so it will be in the future. Alliances THE UNITED STATES SUPREME COURT. 149 between Nations are formed upon mutual interests. Thus early in the present century, Great Britain and France were driven through fear of the growing power of Germany into an alliance that was patent to all the world. And under the stress of the menace to their respective vast colonial empires resulting from the growing power of Germany and the desire of Germany for colonies, France and Great Britain, upon the basis of give and take, rounded off, so far as they could, the sharp corners that existed between them. Thus, for example, France recognized Great Britain's occupancy of Egypt, while Great Britain supported the claims of France to the possession of Morocco. And yet for centuries before that France and Great Britain had been constantly opposed to one another, and had fought many long and bloody wars. But the danger threatened by another power to the possessions of both produced the entente cordiale. As one of the greatest of living international jurisconsults, Professor John Bassett Moore, has aptly said, the possibilities to use force to maintain peace among the Nations depends in part upon public opinion or sentiment. In a letter addressed to the present writer on February 9th, 19 17, the distinguished professor of International Laws of 150 A WORLD COURT IN THE LIGHT OP Columbia University said:" "I am inclined to think that the possibilities of force in maintaining peace are often exaggerated by the omission of one fundamental consideration — namely, that the avail- ability of force in the long run depends on opinion or sentiment. During the past century there have been almost innumerable civil wars, one of the greatest being that which for four years swept over the United States. And yet we had a national government, and under it an administration far more centralized than any one now proposes to estabUsh over nations. But, when the sentiment of the country divided, its force likewise divided, and war naturally resulted. The fundamental pro- blem therefore is how to preserve unity of sentiment. Let no man think that our country could not be divided again if one section should seek ruthlessly to impose its will upon the other in a matter regarded by the latter as politically or socially vital; and in such event, even though one side should again subdue the other, there would nevertheless have been war. Let us also remember that beyond a certain point the suppression of sentiment by force is tyranny." *' This extract is printed with the approval of Professor Moore. THE UNITED STATES SUPREME COURT. 151 The illximination cast upon the evolution of inter- national justice by the way in which the Supreme Court of the United States was evolved ; the remark- able success on the one hand of that great Court in deciding between two individual member States of the United States; and the failure on the other hand of that same high Tribunal in attempting to decide between all the member States of the North American Union when they were divided into two fairly and evenly balanced groups with diametrically opposed interests over the slavery question — give warning that the peoples shotdd not be fooled into believing that by the hasty creation, after the present Great War is ended, of a Supreme Court of the Nations all war will be ended. That would be to mislead the Nations with false hopes and expectations. For the existing international judicial machinery is not to-day the weak point among the forces and institutions forged by the human race to deliver itself from the curse of war. The crucial problem with which the world must wrestle in order to avoid war is more complex than the estab- lishment of a Supreme Coiut of the Nations. The real underlying problem that humanity faces in seeking to eliminate war is that there are two sets of primary questions constantly arising between 152 A WORLD COURT IN THE LIGHT OP two or more agglomerations of peoples. The one set of such questions, no matter how they may be decided in favor of one side or the other, do not seriously threaten the well-being or prosperity of either group of peoples who are interested in any particular question. Those are legal questions, for they may be settled by jural proceedings upon the basis of justice, since the life and future well-being in the world of neither group of people is really at stake, whichever way those questions may be decided. The second class of questions, however, differ radically from the first or legal group of differences. For upon the successfvil solution one way or the other of the questions belonging to the second class, there does depend the future well- being of one or more of the agglomerations or groups of people actually interested in the solution of such questions and the resulting power and ability of such groups to obtain the fruits of the earth. Such questions, which are political in their nature, can only be solved by force or power, which in the last analysis means a resort to war. A practical way, though, to aid in the main- tenance of peace in the world, would be for future Hague Peace Conferences to add to their efforts at legislation, the assumption of the function of con- THE UNITED STATES SUPREME COURT. 153 ciliation. The First and the Second Hague Peace Conferences in their efforts to change the Law between Nations in the interest of peace and harmony in the world, assixmed in a measure the function of a world legislative body. The Third and subsequent Conferences could take up also, from time to time, the task of trying to conciliate so far as possible the clashing interests of rival Nations. In that manner not only would a solu- tion by an appeal to war of some vexatious ques- tions be avoided, but also probably through such conciliation as well as the development of the Law between Nations by the legislative activities of future Peace Conferences at The Hague, some of the questions arising between Nations which to-day belong to the reakn of political questions, could be transferred by degrees to the domain of legal questions. For instance in the past the use that could and could not be made of neutral territory to aid belhg- erents fell within the domain of political questions. Since the time, however, when Jefferson inter- preted Washington's neutrality proclamation of 1793 in a series of important state letters, the use that may and may not properly be made of neutral territory for the advantage of belligerents, has 154 A WORLD COURT IN THE LIGHT OF passed by degrees largely into the area of legal questions. For whereas before Washington's proc- lamation was issued, the status of what could and could not properly be done to aid belligerents, was in a state of flux, since then the rights and duties of neutrals in the premises have become in large measure defined by the general agreement of the members of the family of Nations. In the development of future Hague Peace Con- ferences along the line of conciliating the claims of rival powers, there is hope that progress in lessen- ing the chances and occurrences for the outbreak of war between two or more agglomerations of large masses of humanity could be made and so increase gradually the substitution of international justice for international war. In that way there would seem to be a promise of something substantial for the promotion and preservation of peace, and for warding off from humanity the horrors and misery that accompany war. Instead of trying to end war for all time in the future by one stroke of magic by merely urging the erection of a Supreme Court of the World and a League of Nations to support it, the best friends of peace and the most resolute opponents of war are those who will teach and labor to curtail by slow THE UNITED STATES SUPREME COURT. 155 degrees the occurrences producing war. They will make every effort to transfer gradually as many as possible of the problems arising between Nations which to-day are political questions into the realm of legal questions. For the whole history of human- ity teaches that those who wish to make wars less frequent and peace more durable must be content to proceed slowly and to attain their aims step by step and not try to encompass them at one bound. And above all the study of the career of the United States Supreme Court teaches that there are possi- bly limits in securing world peace beyond which humanity may not hope to go. 156 A WORLD COURT IN THE LIGHT OF EPILOGUE. When the present writer began shortly before the breaking out of the Great War to study the record of the Supreme Court of the United States, it was with the view of advancing an argument in favor of the early creation of a Supreme Court of the Nations as the best and easiest means of insur- ing peace between the members of the family of Nations. As the study advanced, however, the writer was forced gradually to realize that there were limitations to the possibilities of securing world peace by the mere establishment of such a Tribunal. Nevertheless, the author believes that much can be done to make the recurrences of war less fre- quent. With that object in view he submits the present study in all humility to the jurists of the world with the hope that it may prove of some service in helping the efforts of humanity to render wars less frequent and peace more durable. THE AUTHOR. Philadelphia, November, 19 17. INDEX. PAGE Ableman, Stephen V., vs. Sherman M. Booth and the United States vs. Sherman M. Booth 66 Active, sloop 59 Adams, John 20 Aiguesmortes 2 Alabama Claims 3, 4, 45, 86, 97, 98, 113, 136, 137, 139 Alabama, vs. Georgia 46 Alaskan Boimdary 50 Alaskan lisiere 144 Anna, The 50 Arizona 72 Arnold, Welcome 24, 26 Articles of Confederation 7, 21, 22, 29, 30, 38 Ashley of Ohio 76 Aurelius, Emperor Marcus 133 Balch, Thomas 137 Balch, Thomas Willing 85, 97, 130, 138, 144 Baldwin, Justice 39, 42, 136 Baltimore, Lord 11, 12 Belligerents 153, 154 Benedict the Fifteenth 146 Berard, Victor 85 Bering Sea Fur Seal Case 4, 86-87, I03f ii3. '39 Blair, Justice 34 Blanc, Mont 142 Booth, Sherman M 66-68 Bradford, William 23, 24 Brearly, David 24, 26 Britain, Great 2, 7, 21, 103, 104, 105, 139, 146 Britain, Great, and Germany 122 Brown, Philip Marshall 102 Buchanan, James 68, 76, 78, 107-109 158 INDEX. rACx California 71, 72 Campbell, Justice 106 Campbell vs. Hall II Campobello and Grand Manan Islands 144 Canada 141, 145 Carson, Hampton L 59, 61, 62 Casablanca Affair 87 Cos juridigues 137 Cos poliltques 137 Catron, Justice 106 Cervin, Mont 141 Charles the Second 11, 14, 16, 18 Chase, Samuel 20 Chinese Empire I Chisholm vs. Georgia 33, 35, 36 Civil War, 1861-1865 81-83, >2« Clay, Henry 72 Columbia University 150 Compromise of 1850 71 Compromises in the Constitution 68, 91 Connecticut 7, 8, 10, 13, 15, 16, 18, 19, 21-28, 85 Continental Congress 19, 21, 23, 60, 61 Corwin, Edward S 109, 1 10 Coucy-lc-Chiteau i Cour de Cassation of France 105, 1 13 Cromwell, Oliver 85 Croz, Michel 141 Curtis, George Ticknor 77 Curtis, Justice Benjamin Robbins 77, 78, 108, 109 Cushing, Justice 34 Daniel, Justice 106 Delaware 13 Dickinson, John 27, 32 Dred Scott case 68,73-80,83, loi, 106-109, "*. "3. >I7. "9. 123 INDEX. 159 PAGE Dreyfus case 112 Dyer, Colonel 16, 23, 25 Egle, William H II, 16, 17, 25 Eleventh Amendment to the Federal Constitution 35, 52 Entente cordiale 149 Epilogue 156 Federal Constitution 35-37 Federal Convention 13, 30, 32 Fillmore, President 109 Five Nations, the 14 Ford, Worthington C 78 France 12, 85, 95, 142, 143, 146, 149 Freedom of the seas 145 Fremont, John C 78 French and Teutons 122 Freshfield, Douglas W 142 Fuller, Chief Justice 49. 5° Gaurisankar 141 Geneva Tribunal 3, 4, 45, 86, 87, 98, 103, 136, 137, 139, 140 Georgia 33-35 Georgia vs. Tennessee Copper Company 55 Germany 2, 149 Germany and Great Britain 122 Good offices 3 Grand dessein I43 Great War, the 102, 121, 140, 143, 146, 151, 156 Greek City-States 85 Green, Nathaniel 24 Grier, Justice 106, 108 Griffin, Cyrus 24, 26, 27 Hague Courts, the 6, 87, 102-105, 113, 122, 131 Hague Peace Conference, First, 1899 3, 4, 87, 88, 131, 139, 153 160 INDEX. PACE Hague Peace Conference, Second, 1907. ... 4, 87, 88, 99, 100, 113, 123, i»9. 131. 139, 153 Hague Peace Conference, Third 143 Hague Peace Conferences and Conciliation 153, 154 Hamburg, Free City of 85 Hardwickc, Lord Chancellor 13 Hazard, Ebenezer 10, 16 Hazard 41 Henri Quatre 143 Hershey, Amos S 97, 138 Higgins, A. Poarce 4 Hoadly, Charles J 10, 16 Hollingsworth et al. vs. Virginia 35 Hopkins, Stephen 31 Houston, WiUiam Churchill 34, 36 Illinois 65 Indiana 65 Indiana vs. Kentucky 47 Instructions to American delegation at the Second Hague Peace Conference concerning a proposed World Court 99-101 International Courts of Justice 4, 86, 87, 97, 99, 102, 114, 115, 119, 128, 132, 134, 137, 139, 144 International Law, Private 56 International Law, Public 56, 134, 134, 153 Inter-State Tribunals in American Colonies 89, 132 Jackson, Andrew 65 Jay, Chief Justice 34. 36, 86 Jefferson, Thomas 20, 1 53 Johnson, Dr. William Samuel 16 Johnson, William Samuel 33, 35 Jones, Joseph 24 Judicial settlements, international 84-86 INDEX. 161 PAGE Kansas vs. Colorado 53 Keith, Charles Penrose 1 1 Kelby, George 8 Kinchinjunga 14' King in Council lO, 1 1-13, 17-19, 22 Kings of Paris 142 Kinsey, James 20 Lake dwellers of Switzerland i League of Nations 154 Legal Questions 97. 136-138, 152, I55 Limes Imperii Romanii i Linn, John B 11 Louisiana vs. Mississippi 49 Louisiana purchase 70, 72, 74 Louisiana vs. Texas 55-56 Mansfield, Lord 11, 13 Marbury vs. Madison 36 Marshall, John, Chief Justice 36, 38, 40, 63, 94, 135 Maryland 11, 13 Maryland vs. West Virginia 51 Massachusetts 13, 41-43 Massachusetts vs. New York 29 Matterhom 141 McLean, Justice 44, 77, 78, 108 McMaster, John Bach 72, 75 Mediation 3 Mexico 71 Middle Ages 85 Missouri 71, 72 Missouri Compromise 71, 77, 79-81, 106-109 Missouri vs. Illinois 54 Missouri vs. Iowa 46 Missouri vs. Kansas 50 162 INDEX. rAOB Missouri vs. Kentucky 47 Missouri vs. Nebraska 48 Montesquieu 31 Moore, John Bassett 76, 78, 107-108, 1 18, 130, 149 Municipal Courts 6 Municipal Tribunals 1 14, 128, 131 Napoleon 70 Nelson, Justice Samuel 108-109 Nelson, Thomas 31 Netherland, New 7-9, 85 Netherland, United 3, 9 Neutrality 145, 153-154 New Hampshire vs. Louisiana 51 New Haven 7-9, 85 New Jersey 15, 18-19, 39-40 New Jersey vs. New York 39-40, 61 New Mexico 71-72 New York 9, 14-15, 18-19, 28, 33, 39-40 New York vs. Connecticut 39 Nicholas the Second 3, 139 Ninth article of the Articles of Confederation 27, 88-90 North Atlantic Fisheries Case 87, 103-104 Ohio, State of, against Territory of Michigan 64, 65 Olmstcad, Gideon 59, 64 Oppenheim, Lassa 97, 138 Order in Council 13 Osbom, Henry 23 Paccard, Doctor 142 Paris, Congress of, 1856 139 Paris Tribunal, 1893 140 Parliament of Nations 131 Pauncefote, Sir Julian II8 INDEX. 163 PAGE Penn vs. Lord Baltimore 12-13 Perm, William 11, 14-16, 18 Pemis, the 12-13 Pennsylvania 11, 13-16, 18-20, 22-27, 59-63i 95i 106. 129 Pennsylvania vs. Connecticut 16, 29 Peters, Judge 62-64 Petrie, W. M. Flinders 118 Philadelphia 16-17, 28, 30, 62-63, 78 Pierrefonds I Political Questions 136-138, 152 PoUtiques, differends 97 Princeton University 102, 109 Raeder, A 85 Randolph, Edmund Jennings 34 Reed, Joseph 23-24 Rhode Island 41-42 Rhode Island and Providence Plantations vs. Massachusetts, 40-41. 45. 83, 136 Rhodes, James Ford 72, 109 Rittenhouse, David 61, 63 Rittenhouse, Fort 63 Rogers, Judge Henry Wade 27 Roman Empire i, 132, 133 Root, Jesse 23, 25 Ross, George 20, 60-61 Rutledge, John 20, 24, 32 Salisbury, Marquis of. Premier of Great Britain 118 San Juan Frontier 50 Schlesinger, Arthur Meier 64 Scott, Dred, case, see Dred Scott. Sergeant, Jonathan Dickinson 23-24 Sherman, Roger 18, 20 Sixteenth Amendment to the Federal Constitution 95 164 INDEX. PACE Slavery in the United States. 69-73, 78, 83, 106-107, 109, iii, 130-131 Slaves and Teutons 122 Smith, Rev. William 17 Soule, Anna May 64 South Carolina 20, 24, 33, 35 South Carolina vs. Georgia 29 South Carolina vs. Georgia 56 South Dakota vs. South Carolina 53 Stowell, Lord 50 Strong, Jedediah 16 Stuyvesant, Peter 8 Summers and winters of civilization 132 Supreme Court of the United States 4-6, 31-33, 35-36, 38-41, 45. 50. 55. 57-58. 67-68. 81-84, 92. 94. 96. 99-101, 105-106. 109-1 12, 115, 117, 119-120, 124, 129-130. 136. 140. 151, 155-156. Supreme Court of the World, see World Court. Swiss Cantons 145 Taney. Roger Brooke 43, 76, 80, 94, 106-107, 136 Teutons and French 122 Teutons and Slaves 133 Teitas 71 Treaty of Paris, 1783 90 Treaty of Westminster. 1655 85 Trenton Inter-State Court 25, 26-.29. 87. 90, 120 Tyler, Samuel 76 United States 62 Vattel. Emerich de 48, 135 Venezuela Boundary case 103. 1 13 Venice 2 Virginia 33. 93 Virginia vs. Tennessee 48 Virginia vs. West Virginia 56. 57 INDEX. 165 PAGE Washington, George 21, 153-154 Washington vs. Oregon 50 Way, W. V 64 Wayne, Justice 106 Webster, Daniel 41, 109 Westermann, W. L 85 Westlake, John 97, 137-138 Wharton, Francis 48 Whipple, William 24 Whymper, Edward 141 Willing, Thomas 20 Wilson, James 23-24, 34 Wilson, President 122 Wisconsin 65, 67-68 Witherspoon, John 61 World Court 4-6, 88, 96-101, 113-114, 117, 119-124, 128-134, 140-141, 146, 151, 154 Wyoming Valley 14, 18-19, 21, 86, 90 THIS BOOK IS DUE ON THE LAST DATE STAMPED BELOW AN INITIAL FINE OF 25 CENTS WILL BE ASSESSED FOR FAILURE TO RETURN THIS BOOK ON THE DATE DUE THE PENALTY WILL INCREASE TO SO CENTS ON THE FOURTH DAY AND TO $1.00 ON THE SEVENTH DAY OVERDUE. ctb ^-i ^-' /WR 1 |942f 27Apr'53HDX CPP^ 3iq53 LU 10Jan'62G^ ■5 Re:cx) u J ji\^4 ^9 dZ SJan'63W| REC'D 1 -D ^^^'■'Al U lO ^*' "J. n 62 U) ai-lOOm 8.'84 J U 1 ov. '372971 e 3 UNIVERSITY OF CAUFORNIA UBRARY